Citation Nr: 1010117
Decision Date: 03/17/10 Archive Date: 03/24/10
DOCKET NO. 08-22 009 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an initial increased rating for posttraumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
Emily Tamlyn, Associate Counsel
INTRODUCTION
The Veteran served on active military duty from April 1968 to
April 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2007 rating action of the
Department of Veterans Affairs Regional Office (RO) in St.
Petersburg, Florida. In that the decision, the RO granted a
claim for service connection for PTSD and assigned an
evaluation of 50 percent disabling (effective November 23,
2005). The Veteran filed a notice of disagreement with the
rating in September 2007.
FINDINGS OF FACT
1. The Veteran's service-connected PTSD is manifested by
occupational and social impairment with reduced reliability
and productivity (due to such symptoms as impairment of
short- and long-term memory; impaired judgment; disturbances
of motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships).
2. The Veteran's service-connected PTSD is not manifested by
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: Suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; spatial disorientation;
difficulty in adapting to stressful circumstances (including
work or a work-like setting) and inability to establish and
maintain effective relationships.
CONCLUSION OF LAW
The criteria for an initial disability rating in excess of
50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and to Assist
The Veteran's PTSD claim arises from his disagreement with
the initial evaluation following the grant of service
connection. January and April 2006 letters show that the
Veteran was properly notified of the information and evidence
needed to properly substantiate his claim for service
connection under 38 U.S.C.A. § 5103(a) (West 2002 & Supp.
2009) and 38 C.F.R. § 3.159(b) (2009). The United States
Court of Appeals for Veterans Claims (Court) has held that
once service connection is granted the claim is
substantiated. Dunlap v. Nicholson, 21 Vet. App. 112,
116-117 (2007). Additional notice is not required and any
defect in the notice is not prejudicial. Id.
VA has done everything reasonably possible to assist the
Veteran with respect to his claim for benefits in accordance
with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c)
(2009). Service medical records have been associated with
the claims folder. All identified and available treatment
records have been secured. The Veteran was given a VA
examination in June 2007. The duties to notify and assist
have been met for this claim.
II. Legal Criteria
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes. 38 C.F.R.
§ 4.27 (2009). In exceptional cases, an extraschedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities may be awarded. 38 C.F.R. § 3.321
(b)(1) (2009). For an extraschedular evaluation to apply,
there generally must be a "finding that the case presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards." Id.
The Court has held that in determining the present level of a
disability for any increased evaluation claim, the Board must
consider the application of staged ratings. Hart v.
Mansfield, 21 Vet. App. 505 (2007). Where the evidence
contains factual findings that demonstrate distinct time
periods in which the service-connected disability exhibited
diverse symptoms meeting the criteria for different ratings
during the course of the appeal, the assignment of staged
ratings would be necessary.
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent
with the facts shown in every case. When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. It is a substantial doubt and one within
the range of probability as distinguished from pure
speculation or remote possibility. See, 38 U.S.C.A.
§ 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009).
In accordance with the rating schedule, PTSD is evaluated
under the general rating formula for mental disorders. Under
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2009), a
50 percent evaluation is warranted when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent evaluation is warranted when there is
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms such as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work like setting); and the inability to establish
and maintain effective relationships. Id.
A 100 percent evaluation is warranted where there is evidence
of total occupational and social impairment due to gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living;
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. 38 C.F.R.
§ 4.130, DC 9411. Id.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) and the Court have held that the symptoms
listed in 38 C.F.R. § 4.130 are the appropriate rating
criteria for evaluating psychiatric disabilities, and that
the criteria listed in the Fourth Edition of the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV) supplement, but do not replace,
the criteria listed in the general rating formula. Sellers
v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004);
Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The
Court has recognized that a Global Assessment of Functioning
(GAF) score is based on a scale reflecting the psychological,
social, and occupational functioning on a hypothetical
continuum of mental health-illness. Carpenter v. Brown,
8 Vet. App. 240, 242 (1995). In addition, the Court has held
that a GAF score is only one factor in determining a
veteran's disability rating. See Brambley v. Principi,
17 Vet. App. 20, 26 (2003) (Steinberg, J., concurring).
III. Analysis
The evidence of record shows the Veteran's PTSD is manifested
by occupational and social impairment with reduced
reliability and productivity. This is shown by symptoms such
as: impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships as
contemplated by the 50 percent disability evaluation under
38 C.F.R. § 4.130, DC 9411.
The symptoms warranting a 50 percent evaluation are shown by
the evidence in the claims file. At the June 2007 VA
examination, the Veteran's remote and immediate memory was
normal, but his recent memory was found to be moderately
impaired. For example, he remembered only one word after
3 minutes and no additional cues.
As for impaired judgment, this was noted on the VA
examination report as well as a June 2007 VA psychologist's
record. At the examination, it was noted that his
pessimistic outlook darkens his assessment of situations
around him. On the psychologist's record, judgment was poor
by history.
Disturbances of motivation and mood were noted throughout the
record. For example, at the June 2007 VA examination, the
Veteran was noted to be depressed. As for relationships, the
Veteran had a fiancé (who the file shows he has since
married) at the time of the examination. He did not keep in
touch with any of his other family members. An April 2008 VA
record notes he was actively pursing communication with some
of his children.
Although occupational and social impairment with reduced
reliability and productivity best approximates the Veteran's
disability picture, the Veteran still does not manifest many
of the symptoms listed under this rating. The June 2007 VA
examination showed affect to be constricted, not flattened.
There was no circumstantial, circumlocutory or stereotyped
speech. The Veteran did not have panic attacks. Although
the Veteran had some attention disturbances, there was no
showing that he had difficulty in understanding complex
commands. His thought process and content were unremarkable;
he thinking was not shown to be impaired.
The Veteran's GAF scores ranged from 40 to 45 in a June 2007
VA psychologist record to a score of 62 in October 2007. If
all GAF scores are taken into account, they average about 55.
As mentioned, GAF scores supplement and do not replace the
general rating formula criteria. Sellers, 372 F.3d at 1326-
27 and Mauerhan v. Principi, 16 Vet. App. at 442. A score in
between 31 to 40 is reflected by some impairment in reality
testing or communication or major impairment in several
areas, such as work, family relations, judgment, thinking, or
mood. A score between 41 and 50 indicates serious symptoms
or any serious impairment in social occupational functioning.
Scores between 51 to 60 show moderate symptoms or moderate
difficulty in social or occupational functioning. Scores
between 61 and 70 reflect mild symptoms.
A review of the file in its totality shows that the Veteran
has occupational and social impairment with reduced
reliability and productivity due to the symptoms discussed
above. For example, the June 2007 examiner specifically
found that the PTSD signs and symptoms did not result in
deficiencies for work. Also, most VA medical reports show
the Veteran having normal mental status examinations and
overall showed improvement since seeking treatment.
The Board finds the Veteran does not truly manifest symptoms
of occupational and social impairment with deficiencies in
most areas (such as work, school, family relations, judgment,
thinking, or mood) or the criteria needed for an increased
rating of 70 percent. Symptoms not present include: suicidal
ideation; obsessional rituals; illogical, obscure or
irrelevant speech; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; spatial disorientation;
difficulty in adapting to stressful circumstances; and the
inability to establish and maintain effective relationships.
The 100 percent rating symptoms are also not present; there
were no hallucinations, grossly inappropriate behavior, or
any of those indicators. As a result, an increased rating is
not warranted.
Some symptoms of the 70 percent rating were found, but the
Board does not find that this rating approximates the
Veteran's disability picture. For example, at the June 2007
VA examination, the Veteran related he "smacked" his
girlfriend within the past year in a way he considered
excessive. This could be an indicator of impaired impulse
control (such as unprovoked irritability with periods of
violence). Other such incidents during the appeal period
were not shown in the file. Also, while the Veteran reported
having to be reminded to take showers (stating "I just don't
to do much of anything") the examiner also noted his
appearance was clean and he was casually dressed. The
evidence shows a 50 percent evaluation is appropriate for the
Veteran.
The Board has considered whether the Veteran is entitled to
additional staged ratings. Hart, 21 Vet. App. 505. The
Veteran's service-connected PTSD has not shown to be more
than 50 percent disabling and as a result he is not entitled
to a staged rating.
Additionally, the Board does not find that consideration of
an extraschedular rating under the provisions of
38 C.F.R. § 3.321(b)(1) is warranted. No hospitalization for
PTSD has been shown. Social Security Administration records
in the file indicate that the Veteran has been receiving
disability benefits since approximately 1992 due to heart and
back disabilities; the Veteran also reported this fact at the
June 2007 VA examination. The examiner also stated that PTSD
signs and symptoms do not result in deficiencies in working.
The Veteran has not shown that his PTSD results in unusual
disability or impairment that renders the criteria and/or
degrees of disability contemplated in the Schedule
impractical or inadequate. Accordingly, consideration of
38 C.F.R. § 3.321(b)(1) is not warranted in this case.
As the preponderance of the evidence is against the claim for
an increased rating, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b).
ORDER
An initial disability rating in excess of 50 percent for PTSD
is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs